Dive Brief:

• A Southwest Airlines employee was fired for saying he wanted to bring a gun to work — not in retaliation for taking Family and Medical Leave Act (FMLA) leave, the 5th U.S. Circuit Court of Appeals has determined (Clark v. Southwest Airlines Co., No. 17-51026 (5th Cir., April 18, 2018)).
• Tate Clark, a customer service agent, used FMLA leave for chronic migraine headaches. When Southwest fired him, he sued, alleging FMLA retaliation. Southwest successfully showed that the termination was based on comments Clark made to a co-worker that it deemed a violation of its zero-tolerance policy on workplace violence: he allegedly said he wished he could order a black trench coat so that he could bring his shotgun to work.
• In defending its actions, Southwest pointed out that for years, Clark had never been denied FMLA leave. A district court dismissed the employee's suit, finding that, despite the proximity between his last FMLA absence and the date he was fired, Clark failed to show that Southwest's actions were pretext for FMLA retaliation. The 5th Circuit upheld the lower court's order.

Dive Insight:

Employers often find themselves in the uncomfortable situation of needing to discipline a worker who has recently exercised a job-protected right.

Still, there's a growing body of case law that supports employers' need to take action in certain circumstances, especially around FMLA use. Leave, by its nature, often reveals misconduct, as supervisors have to check workers' email accounts and co-workers have to step in to cover the leave-taker's work when they're out. Earlier this year, for example, an appeals court upheld an employee's termination when his supervisor discovered during his leave that he had lied to customers (Balding v. Sunbelt Steel Texas, Inc., No 16-4095 (10th Cir. March 13, 2018)).

Another appeals court has noted that to rule differently would allow workers to take leave and hope that employers discover evidence of the misconduct during leave, preventing employers from ever being able to take action against workers — “a laughable result” not supported by the statute or common sense (Schaaf v. SmithKline Beecham Corp., d.b.a. GlaxoSmithKline, 602 F. 3d 1236 (11th Cir. 2010)).

Still, employers must exercise caution. When it comes to the FMLA — and many other job-protected rights — manager training, good documentation and good communication are key.